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April 30, 2021

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Attorney General Steve Marshall Urges U.S. Supreme Court to Reverse Decision Giving EPA Virtually Unlimited Regulatory Power

Case Would Challenge Erroneous Lower-Court Ruling That Risks the Elimination of Countless Jobs and an Increase in Energy Costs

(MONTGOMERY) – Attorney General Steve Marshall joined a 19-state coalition Thursday in urging the U.S. Supreme Court to take swift action to stop a federal appeals court ruling that would give the Environmental Protection Agency virtually unlimited authority to regulate wide swaths of everyday life with rules that would increase energy costs and eliminate countless jobs.

“The appeals court’s decision grants the EPA unprecedented authority, without Congressional approval, to unilaterally decarbonize virtually any sector of the economy, including factories and power plants, as well as the millions of homes and small businesses that use natural gas,” said Attorney General Marshall. “Without the intervention of the Supreme Court, the flawed appeals court ruling could set a devastating standard and lead to decisions of great economic consequence based upon unlawful EPA regulations, not the rule of law.”

The state coalition’s petition argues a ruling from the U.S. Court of Appeals for the District of Columbia Circuit violates the constitutional separation of powers. It contends the lower court inappropriately interpreted Section 111 of the Clean Air Act as authorizing the EPA to sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation.

Members of the state coalition previously prevailed in urging the Supreme Court to block a similar attempt by President Obama, and now cite that victory and the insurmountable costs of President Biden’s proposals, in arguing for the Supreme Court to step in and define the reach of the EPA’s authority once and for all.

The petition also contends the appeals court ignored a February 2016 Supreme Court stay, which the state coalition argues should have signaled that the Supreme Court viewed existing law as limiting the EPA’s authority – not expanding it.

The petition further cites a prior case, Michigan v. EPA, as an example of when perception of the EPA’s power amid pending litigation forced regulated entities to comply with regulations that the Supreme Court eventually deemed unlawful. The state coalition argues that if market forces could have been shaped so dramatically amid a pending case, delaying review will likely lead to even more significant and irreparable change.

Alabama joined Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming and the governor of Mississippi in filing the cert petition before the Supreme Court.

Link to the 19-state cert petition.

[For links, click PDF icon at upper right of press release]